Judging Marriage, Proposition 8 Struck Down

Yesterday, federal district court Judge Vaughn Walker, a Reagan appointee, overturned California’s Proposition 8, which defines marriage as the union of one man and one woman.

While the immediate impact is limited to the state of California, the consequences of this egregious bit of judicial overreach threatens to be nationwide.

Two years ago, the California Supreme Court ruled that denying same-sex couples the right to marry violated the state constitution. In response, supporters of traditional marriage followed California’s legal and democratic process: They collected enough signatures to put a proposed amendment to the state constitution on the ballot.

After a hard-fought campaign in which they were outspent by the other side, Proposition 8 supporters, including many African American pastors, enacted the referendum. Having lost the democratic battle, the losers again returned to the courts, this time the federal courts.

They argued that denying same-sex couples the right to marry violated the 14th Amendment’s Equal Protection Clause. Throughout the 13-day trial, Judge Walker’s sympathies were clear to observers.

He ruled yesterday that “moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.” Warming to the task, he added that “the evidence shows conclusively that Proposition 8 enacts, without reason”—note that, “without reason”—“a private moral view that same-sex couples are inferior to opposite sex couples.”

Even though his ruling isn’t surprising, his dismissal of the opinions of the people of California and five thousand-plus years of human tradition is breath-taking. Then again, inasmuch as Walker is one of the few openly gay federal judges, maybe his dismissal shouldn’t shock us, either.

Let’s be clear. What’s at stake here goes beyond California and even beyond marriage itself. The reasoning that overturned California’s law, that said that the right of gays to marry is a fundamental constitutional right, would, if applied nationally, overturn similar laws throughout the country.

As Pastor Jim Garlow, who led the Proposition 8 campaign, points out, it would be a mistake to think that the battle about the definition of marriage is only over marriage—disastrous as that is. A loss on this issue will have devastating consequences for our personal freedoms.

Garlow points to the weakening of parental rights, of course the attack on religious freedom and individuals practicing their faith in public. People who oppose same-sex marriage will be forced to choose between full participation in public life and fidelity to their convictions.

So what comes next? An appeal to Ninth Circuit, the most liberal circuit court in America, and an expedited appeal to Supreme Court.

But my hopes are instead in the groundswell of public outrage and resistance. This is re-writing the Constitution of the United States and undermining the most basic institutions of civilized society.

Comments

Outrage is right! The sheer arrogance of this one man to oppose and overturn the will of the people who legally won the right to have marriage defined as they would here in California!!! And where were the ones who were supposed to be looking out for their people’s best interest’s? Where was our beloved governor? I thought that he was supposed to be our representative!!! So much for Americas great democratic system!!! Could this be the beginning of the very end?

What is particularly baffling is Judge Walker’s claim that Prop 8 failed the “rational basis” test. Had Prop 8 been passed by the state legislature, even determining legislative “intent” or reasoning can be difficult. But since Prop 8 was passed by around seven million voters in California, how exactly did the judge determine their intent? How could he possibly know the reasons that millions of people had for voting for Prop 8?

But his ruling really goes beyond Prop 8. In asserting that there is no rational basis for restricting marriage to opposite-sex couples, Walker is saying that everyone who supports such restrictions must be motivated by animus toward or disapproval of gays and lesbians. This would include President Clinton, President Obama, all the senators and representatives who voted for DOMA, all of the state legislatures that have passed state versions of DOMA, all of the voters who have voted for such restrictions, etc. etc.

One could conclude from Judge Walker’s opinion that the only reason why marriage has been between men and women since recorded history is because of animus toward gays and lesbians. In saying that there is no rational basis for such restrictions he really is making a very extraordinary claim. I think that anyone who cares about the judicial system, regardless of their personal opinions on same-sex marriage, should be very troubled by this decision.

I do not readily play the “activist judge” card, but there is much that is wrong with this decision, from top to bottom, that I don’t know any other way to describe it.

Certainly, people can have principled concerns about gay marriage from a religious/spiritual perspective while harboring no ill-will towards gay people themselves. So from that perspective, his assessment on the intent of the voters was not a valid one.

In a court of law, however, one cannot rely on Scriptural or Biblical arguments alone, nor can one even rely on tradition (“we’ve always done it this way … “).

The question is not whether an Orthodox (or Catholic) wedding ceremony should be denied to a gay couple but whether a civil marriage license should be denied to them and why. The supporters of Proposition 8 were asked to provide evidence that denying marriage licenses to couples who requested it would place some undo burdens or harm on the culture as a whole, heterosexual couples currently married (or hoping to be married) or gay couples themselves. Unfortunately for the pro-8 side, they did not have a lot of witnesses, and one of their star witnesses (David Blankenhorn) ended up proving to be more of an asset for Boies and Olson than for them.

[Blankenhorn] also [believed] that same-sex marriage would likely improve the stability of same-sex couples, the welfare of their children, and further the American pursuit of
equality

Further, their witnesses could only speak in vague terms about the influence on heterosexual marriage. It requires a great deal of speculation and fortune-telling, unlike no-fault divorce laws which impacts marriage in a much more obvious and tangible way.

Given the lack of evidence that gay marriage will bring about the end of civilization (but might rather assist many), the judge was left to wonder why some would deny the marriage license to gay couples unless they were acting out of prejudice rather than principle.

I’m not saying I agree completely, but it’s an understandable conclusion.

Rob writes: “Further, their witnesses could only speak in vague terms about the influence on heterosexual marriage. It requires a great deal of speculation and fortune-telling, unlike no-fault divorce laws which impacts marriage in a much more obvious and tangible way.”

That’s true. But the curious thing is why the judge decided to have a trial at all rather than deciding the case on the basis of law. I believe that came as a surprise even to the opponents of Prop 8.

The judge himself engages in fortune-telling. For example, he says that “the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage . . . “[p126, l22] But how could he possibly know that? What possible “evidence” could “show” what might happen in the future?

And this is one small example of what is so wrong in this decision. Everything presented as evidence by the opponents is taken as fact, even when the witnesses were activists for homosexual causes. Meanwhile, evidence presented by witnesses on the other side was often dismissed out of hand.

To change a fundamental component of an institution is to change the institution, and thus to change the values, roles, and ideals represented in and promulgated by that institution. Thus it is not irrational to believe that such a change could indeed have an adverse effect on the institution, especially when the change is a deviation from literally centuries of practice and received wisdom. That alone provides a rational basis for maintaining marriage as an institution for heterosexual couples. Stated differently, whether right or wrong (and I think it is right) the people of California have the right to believe that about marriage and to have laws that reflect that understanding.

But this illustrates more of Judge Walker’s own fortune-telling. How does he know why seven million people in California voted for Proposition 8? People could have voted for it for all sorts of reasons, including reasons that were never presented in court. Why were they not presented in court? Because the attorneys could not possibly know all of the reasons.

This is one reason why I think it was inappropriate to have a trial instead of simply deciding the case based on law — because the evidence necessary to establish a “rational basis” — in other words WHY people voted for Prop 8 — could not possibly be ascertained. Instead, we are left with Judge Walker’s speculations.

Jim, of course it would be quite presumptuous of Walker to state that he knew infallibly of the future impact of his decision. The only thing a court can do is look at the evidence in terms of what has occurred before and make an assessment of what will likely occur given the validity of that evidence. I think it’s fair to expect them to make a judgment based on that range of knowledge.

For example, I would expect the court to examine:
a) the impact of gay marriage on the lives of those who participate in it
b) the impact on the lives of immediate family members (whether by blood, adoption or some other arrangement)
c) the impact on those within their surrounding communities

These are tangible discussions that can be approached in a court of law that would still allow a court to reject gay marriage without even relying on arguments based on Biblical norms. I’m assuming they were touched upon in the Prop 8 trial (but I have admittedly not read all the transcripts).

Rob, concerning the evidence presented at trial, it’s important to understand how this whole situation came about, and why Prop 8 was so poorly defended.

It came about because the attorney general of California refused to do his job. Part of his job is to defend the laws and constitution of California. In this case, he refused to do that because . . . well, because he didn’t want to. State attorneys general defend things they personally disagree with all the time, but not Jerry Brown.

Had the attorney general done his job, the resources of the State of California would have been available to defend Prop 8. Instead, officials from Alameda and Los Angeles counties, the governor, and the attorney general were missing in action, stating that they had no intention of defending Prop 8, EVEN BEFORE the trial.

The whole thing has a corrupt, set-up feel to it. When the opponents of Prop 8 filed their complaint, it appears that they included as defendants only “gay-marriage friendly” county recorders, in addition to the gay-marriage friendly governor and attorney general. All of those people then refused to defend Prop 8.

So rather than the resources of the State of California, Prop 8, approved by a wide majority of California voters, had to be defended by its proponents, who were never even originally listed as defendants. Instead, they were added later as “defendant-intervenors,” since government officials were missing in action. And then, when it comes time for an appeal, surprise! According to Judge Walker the defendant-intevenors probably have no “standing” to defend Prop 8. But this has all the feel of a corrupt manipulation of the legal system.

Prior to the trial, the officials of Imperial County, 70 percent of whose voters approved Prop 8, were aware back in 2009 that Prop 8 could be left with no appellants with standing, and tried to get added as appellants for the appeal phase, it there were to be one. But Judge Walker denied their motion, stating as one of his reasons that Prop 8 was already adequately defended — even though the governmental defendants had already said that they would not defend Prop 8. Again, whatever the legal reasoning, this has the feel of a set-up to it.

The result of all this was that Prop 8 was defended poorly at trial and quite possibly left without anyone who has standing to appeal, denying the voters of California their “day in court” for the appeal. This is apparently how one of the most important social and political issues of our is handled by the legal system.